Opinion
September 24, 1992
Appeal from the Supreme Court, Rensselaer County (Keniry, J.).
Even if it is accepted that defendant Ames Department Store, Inc. submitted enough proof to warrant summary judgment in its favor (see, GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965; cf., Franceschi v Consolidated Rail Corp., 142 A.D.2d 915), plaintiff, in our view, came forward with sufficient proof in evidentiary form to create a question of fact requiring a trial on the issue of whether Ames actually created the hazard causing plaintiff's injury (see, Zuckerman v City of New York, 49 N.Y.2d 557; cf., McGill v Caldors, Inc., 135 A.D.2d 1041). Ames claimed that pretrial discovery failed to implicate it as the party responsible for the presence of the two-by-four board containing the nail on which plaintiff stepped and injured himself in the parking lot. Plaintiff, however, established that on the date of the accident employees of Ames had already begun the process of installing fixtures and stocking merchandise in preparation for the opening of Ames' new store. Plaintiff also submitted deposition testimony indicating that Ames received and disassembled wooden crates with nails in the vicinity of the accident prior to its occurrence. Under these circumstances, Supreme Court properly denied Ames' motion insofar as "arguable questions of fact exist" (see, Wilder v Rensselaer Polytechnic Inst., 175 A.D.2d 534, 535). Ames' remaining contentions have been considered and rejected as unpreserved for review or lacking in merit.
Weiss, P.J., Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the order is affirmed, with one bill of costs.